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HomeMy WebLinkAbout11.28.79 Letter on Sep 25 Resolutioncw 5, 1E) 4 JOHN 0. MUSICK, JR. STEPHEN T. WILLIAMSON ALAN E. SCHWARTZ LOYAL E. LEAVENWORTH JOSEPH A. COPE SUE ELLEN HARRISON WILLIAM T. SMITH, JR. KEVIN L. PATRICK JAMES 5, LOCHHEAD ROBERT W. WIG INGTON RICHARD M. FOSTER, JR. MUSICK, WILLIAMSON, SCHWARTZ, LEAVENWORTH & COPE, P. C. ATTORNEYS AT LAW November 28, 1979 Glenwood Springs Ms. Karen B. Smith, Director Aspen /Pitkin Planning Department 130 South Galena Street Aspen, CO 81611 75 MANHATTAN DRIVE P. O. BOX 4579 SOULOER, COLORADO 80306 TELEPHONE 1303Y 499 -3990 ICOLO /1 -500 332 -2140 1011 GRANO AVENUE 8, 0. DRAWER 2030 GLENWOOD SPRINGS. COLORADO 91501 TELEPHONE 13031 945 -2261 ICOLOI ■-800 332 -6959 Re: Basalt Water Conservancy District Resolution of September 25, 1979 Dear Karen: The Basalt District meeting of September 25, 1979, revealed some rather disturbing indications of where the Basalt Project is being directed. In short, several of the Directors and counsel (Scott Balcomb) admitted their personal beliefs that the Basalt Project (being a project not yet authorized as a participating project by the Water and Power Resources Service, formerly Bureau of Reclamation) would 11not be built in their lifetimes." This having been stated, the District is somewhat pressed to find a use for its water which would justify its past and continued existence before its inhabitants (who have paid District assessments for nearly two decades) . The attached Resolution reveals the bearing which the District is now embarking upon: that of a legal water supplier to sprawl- corridor development in the Roaring Fork Valley. The Resolution was passed in its current form as a result of several heated meetings which John and I had with the District. Prior to these meetings, the District had begun to market water to new developments without regard to local land use planning and without the solicitation of the input of the local land use planners. The current Resolution provides that, prior to the granting of water to any new development located outside of municipal limits, the District will provide the relevant county planners with a, statement of what they are "ready, willing, and able" to provide pursuant to the procedure set by the county planners. MUSrCK, WILLIAMSON, SC.:ARTZ, 'LEAVcNWORTH & COPE, P. C. M. Karen B. Smith, Director November 28, 1979 Page 2 Our comments to this are: 1. What appears as an attempt to not usurp local land use planning is really a chicken - before -the -egg scenario. If a developer is before either Pitkin, Eagle, or Garfield County, he must evidence an adequate physical and legal water; supply. If his intent is to utilize District water rights, he will have to represent that to the relevant County. Accordingly, a commitment (expressed or implied) must be made to the developer by the District before the initiation of the County review process. If none is made, County approval will not be forthcoming due to the inability of the developer to show ownership or entitlement of a legal water supply. Further, if a developer expends large sums of time and money in the county review process and the county grants an approval conditioned upon securing District water, the District will be hard pressed, if not legally pressed, to provide water service. The practice, in actuality, will be that the District is agreeing to provide water service to any person prior to the county review process. 2. Further, the Resolution (in the fifth "Whereas clause ") states, in part: " . . . the District would be furthering the chances for ultimate construction of the Basalt Project in providing a short term immediate benefit to its inhabitants;" [Emphasis supplied] Such language assumes the water supply relationship between the District and new water users to be temporary in nature. Developments should not be approved on temporary legal water supplies. 3. The statement that the District "is ready, willing and able to provide water service" to parties requesting service within its boundaries coupled with the activities of the district designed to require District service to new water users raises the dangerous spector of public utilities status for the District. If a water user denied service by the District successfully. asserted public utilities status over the District, local land use planning would be frustrated by a requirement to service new water users within District boundaries. In short, the District might not be .able to stop sales even it desired to do so. Mu51CF5, WILLIAMSON, SC )/ARTZ, LEAVENWORTH & COPE, P. C. Ms. Karen 13. Smith, Director November 28, 1979 Page 3 Moreover, all that is available to water users by virtue of any agreement with the District is a legal,, not physical, water supply. No agreement. with the District will ptovide actual water. Drought years which .result in a shortage of physical water to water users will not be eased by purchase of the District's decrees. i 4. Nothing within the Resolution prohibits usurpation of local land use planning if agricultural land serviced by District decrees is later developed. The Resolution speaks only to a "right to revoke" the agreements upon such an occurrence. This revocation should be automatic upon • a change of use of District water from agricultural use to any use other than recreation and minimum stream flow purposes. 5. Ownership of water under the Resolution is not transferable without District approval. Again, with only District control over subsequent use of water after changes in ownership, local land use planning may be frustrated under the spirit of the Resolution. Ownership of water after transfer of such should either be prohibited or subject to county approval. Y` r. 1 MUSICK, WILLIAMSON, SCHWARTZ, LEAVENWORTH & COPE, P. C. Ms. Karen 13. Smith, Director November 28, 1979 Page 4 Moreover, it has historically been Pitkin County's position that the waters within Ruedi are best utilizied for recreational, fish and wildlife, and irrigation uses:' For the County to approve a water supply that relies upon Ruedi Reservoir water would be inconsistent with present County policy. In short, even in the limited areas of Pitkin County which could potentially be served by District decrees, we would recommend that the County not approve a water supply for new or existing development which is based upon District decrees. I have attached a copy of a memorandum previously prepared on the effect of the District's actions on Colorado's newly adopted "Human Settlement Policies "; the memorandum further illustrates the potential and use conflicts of water supplies based upon Ruedi Reservoir releases. 1